Exhibit 10.13
OCEN COMMUNICATIONS, INC.
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AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
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January __, 2000
TABLE OF CONTENTS
Page
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1. Registration Rights................................................................................... 1
1.1 Definitions..................................................................................... 1
1.2 Request for Registration........................................................................ 2
1.3 Company Registration............................................................................ 4
1.4 Obligations of the Company...................................................................... 4
1.5 Furnish Information............................................................................. 6
1.6 Expenses of Demand Registration................................................................. 6
1.7 Expenses of Company Registration................................................................ 7
1.8 Underwriting Requirements....................................................................... 7
1.9 Delay of Registration........................................................................... 8
1.10 Indemnification................................................................................. 8
1.11 Reports Under Securities Exchange Act of 1934................................................... 9
1.12 Form S-3 Registration........................................................................... 10
1.13 Limitations on Subsequent Registration Rights................................................... 11
1.14 "Market Stand-Off" Agreement.................................................................... 11
1.15 Termination of Registration Rights.............................................................. 12
2. Right Of First Offer.................................................................................. 12
2.1 Company Requirements............................................................................ 12
2.2 Termination..................................................................................... 13
3. Right of First Refusal................................................................................ 14
4. Information Rights.................................................................................... 14
4.1 Financial Information........................................................................... 14
4.2 Inspection Rights............................................................................... 15
4.3 Termination of Information Rights............................................................... 15
5. Assignment of Rights.................................................................................. 15
5.1 Assignment...................................................................................... 15
6. Miscellaneous......................................................................................... 16
6.1 Successors and Assigns.......................................................................... 16
6.2 Governing Law................................................................................... 16
6.3 Counterparts.................................................................................... 16
6.4 Titles and Subtitles............................................................................ 16
6.5 Notices......................................................................................... 16
6.6 Expenses........................................................................................ 16
6.7 Amendments and Waivers.......................................................................... 16
6.8 Severability.................................................................................... 16
6.9 Aggregation of Stock............................................................................ 17
6.10 Entire Agreement; Superseding Effect............................................................ 17
i.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
the ____ day of January, 2000, by and among oCen Communications, Inc., a
California corporation (the "Company"), and the parties listed on Schedule A
hereto (collectively, the "Investors" and each individually, an "Investor").
RECITALS
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WHEREAS, the Company and certain of the Investors (the "Series A, B
and C Investors") are parties to an Amended and Restated Investors' Rights
Agreement dated as of November __, 1999 (the "Investors' Rights Agreement"), and
wish to amend and restate the Investors' Rights Agreement upon the terms and
condition set forth herein.
WHEREAS, the Company and certain of the Investors (the "Series D
Investors") are parties to the Series D Preferred Stock Purchase Agreement of
even date herewith (the "Series D Agreement"); and
WHEREAS, in order to induce the Company to enter into the Series D
Agreement and to induce the Series D Investors to invest funds in the Company
pursuant to the Series D Agreement, the Series A, B and C Investors and the
Company hereby agree that this Agreement shall govern the rights of the
Investors to cause the Company to register shares of Common Stock issuable to
the Investors and certain other matters as set forth herein;
NOW, THEREFORE, the parties hereby agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
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1.1 Definitions. For purposes of this Agreement:
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(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Common Stock" means the common stock, $0.001 par value,
of the Company.
(c) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 5 hereof.
(e) The term "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(f) The term "Preferred Stock" means the Series A Preferred Stock,
$0.001 par value, of the Company, the Series B Preferred Stock, $0.001 par
value, of the Company, the Series C Preferred Stock, $.001 par value, of the
Company and the Series D Preferred Stock, $0.001 par value, of the Company.
(g) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing with the SEC a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(h) The term "Registrable Securities" means (i) the Common Stock
issuable or issued upon conversion of the Preferred Stock, (ii) Common Stock
issued to the Investors prior to the date of this Agreement; provided, however,
that such Common Stock shall not be deemed Registrable Securities for purposes
of Section 1.2 and (iii) any Common Stock of the Company issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of the shares referenced in (i) and (ii) above, excluding in
all cases, however, any Registrable Securities sold by a person in a transaction
in which such person's rights under this Section 1 are not assigned.
(i) The number of shares of "Registrable Securities Then Outstanding"
shall be determined by the number of shares of Common Stock outstanding which
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
(j) The term "SEC" shall mean the Securities and Exchange Commission.
1.2 Request for Registration.
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(a) If the Company shall receive at any time after the earlier of (i)
January __, 2003 or (ii) six (6) months after the effective date of the first
registration statement for a public offering of securities of the Company (other
than a registration statement relating either to the issuance of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or a SEC Rule 145 transaction), a written request from the Holders of at
least fifty percent (50%) of the Registrable Securities then outstanding that
the Company file a registration statement under the Act covering the
registration of at least fifty percent (50%) of the Registrable Securities then
outstanding (or any lesser percentage if the aggregate gross proceeds from the
offering exceed $10,000,000) then the Company shall:
(i) within ten (10) days of the receipt thereof, give written
notice of such request to all Holders; and
(ii) use its best efforts to effect as soon as practicable, the
registration under the Act of all Registrable Securities which the Holders
request to be registered, subject to the limitations of subsection 1.2(b),
within twenty (20) days of the mailing of such notice by the Company in
accordance with Section 6.5.
2.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to subsection 1.2(a) and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by the Company and shall be reasonably
acceptable to a majority in interest of the Initiating Holders. In such event,
the right of any Holder to include such Holder's Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and it is therefore beneficial to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than one hundred twenty
(120) days after receipt of the request of the Initiating Holders; provided,
however, that the Company may not utilize this right more than twice in any
twelve-month period.
(d) In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected one registration pursuant to
this Section 1.2 and such registration has been declared or ordered effective;
(ii) During the period starting with the date ninety (90) days
prior to the Company's good faith estimate of the date of filing of, and ending
on a date one hundred eighty (180) days after the effective date of, a
registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
3.
(iii) If the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3 pursuant
to a request made pursuant to Section 1.12 below.
1.3 Company Registration. If the Company proposes to register
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(including for this purpose a registration effected by the Company for
shareholders other than the Holders) any of its stock or other securities under
the Act in connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of securities to
participants in a Company stock option plan, stock purchase plan, a registration
on any form which does not include substantially the same information as would
be required to be included in a registration statement covering the sale of the
Registrable Securities), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 6.5, the Company shall, subject to the provisions of
Section 1.8, use its best efforts to cause to be registered under the Act all of
the Registrable Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this
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Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and keep such registration statement
effective for a period of up to one hundred twenty (120) days or until the
distribution contemplated in the Registration Statement has been completed;
provided, however, that (i) such 120-day period shall be extended for a period
of time equal to the period the Holder refrains from selling any securities
included in such registration at the request of an underwriter of Common Stock
(or other securities) of the Company; and (ii) in the case of any registration
of Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such 120-day period shall be extended, if
necessary, to keep the registration statement effective until all such
Registrable Securities are sold, provided that Rule 415, or any successor rule
under the Act, permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a post-effective
amendment which (I) includes any prospectus required by Section 10(a)(3) of the
Act or (II) reflects facts or events representing a material or fundamental
change in the information set forth in the registration statement, the
incorporation by reference of information required to be included in (I) and
(II) above to be contained in periodic reports filed pursuant to Section 13 or
15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other
4.
documents as they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Act.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 1, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 1, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
(j) In the event that the Underwriters' Representatives establish a
directed share program (the "Program") in connection with the Company's initial
registered offering, subject to applicable law and NASD requirements, the
Company shall use its reasonable best
5.
efforts to offer to each Investor holding more than 1,000,000 shares of
Preferred Stock (a "Significant Investor") the opportunity to participate in the
Program (shares subject to the Program are hereinafter referred to as the
"Directed Shares"); provided, however, that in no event shall the aggregate
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number of Directed Shares exceed five (5) percent of the total number of shares
to be sold in the initial registered offering (excluding the number of shares,
if any, to be sold in connection with the exercise of the over-allotment option
by the Underwriters' Representatives), and provided further, that the
participation of any Significant Investor in the Program is conditioned upon the
approval of such participation by the Underwriters' Representatives and the
NASD. The number of Directed Shares that shall be allocated to each such
Significant Investor shall be calculated on a pro rata basis, so that each
Significant Investor shall have the option to purchase all or any part of that
number of Directed Shares equal to the product obtained by multiplying (i) the
aggregate number of Directed Shares by (ii) a fraction, the numerator of which
is the total number of outstanding shares of Preferred Stock (stated on an as-
converted basis, and as adjusted for stock splits, stock dividends,
recapitalizations and the like) held by such Significant Investor immediately
prior to the effectiveness of the Company's initial registered offering and the
denominator of which is the total number of shares of the Company's Preferred
Stock outstanding (stated on an as-converted basis, and as adjusted for stock
splits, stock dividends, recapitalizations and the like) and Common Stock (as
adjusted for stock splits, stock dividends, recapitalizations and the like)
immediately prior to the effectiveness of the Company's initial registered
offering. Each such Significant Investor shall have the option, but not the
obligation, to purchase the number of Directed Shares (as calculated pursuant to
the formula set forth in the preceding sentence) at the price per share at which
such shares are sold to the public in such registration.
1.5 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.6 Expenses of Demand Registration. All expenses, other than
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underwriting discounts and commissions and fees and expenses of counsel to the
Holders incurred in connection with registrations, filings or qualifications
pursuant to Section 1.2, including (without limitation) all registration, filing
and qualification fees, printers' and accounting fees, and fees and
disbursements of counsel for the Company shall be borne by the Company, except
that the Company shall be required to pay up to but no more than $15,000 of the
fees and expenses incurred by one special legal counsel to such selling Holders,
any additional expenses or fees incurred by the special counsel to the selling
Holders shall be borne pro rata by such selling Holders; provided, however, that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses on a pro rata basis), unless the Holders of a majority
of the Registrable Securities agree to forfeit their right to their demand
registration pursuant to Section 1.2; provided further, however, that if at the
time of such withdrawal, the Holders have learned of a material adverse change
in the condition, business, or prospects of the Company from that known to the
Holders at the time of their
6.
request and have withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change, then the Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear and
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pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto selected by them and up to $15,000 of the fees and expenses of one
special counsel to such Holders, but excluding underwriting discounts and
commissions and taxes relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company than the underwriters determine in their sole discretion is
compatible with the success of the offering, then in such event the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering;
provided, however that any such limitation by the underwriters will be
apportioned as follows: (i) first the Common Stock held by officers, directors
or affiliates of the Company will be excluded from the registration, (ii) next
the securities other than Registrable Securities will be excluded from the
registration and (iii) last the Registrable Securities requested to be
registered by the Holders shall be excluded from such registration to the extent
required by the underwriters. If a limitation of the number of shares is still
required, the number of shares of Registrable Securities that may be included in
the registration and underwriting shall be allocated among all Holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities requested for inclusion in such Registration held by such Holders at
the time of filing the registration statement. No Registrable Securities or
other securities excluded from the underwriting by reason of this Section 1.8
shall be included in such registration statement. For purposes of the preceding
sentence concerning apportionment, for any selling shareholder which is a Holder
of Registrable Securities and which is a partnership or corporation, the
partners, retired partners and shareholders of such holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "selling
shareholder," and any pro-rata reduction with respect to such "selling
shareholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling shareholder," as defined in this sentence. Notwithstanding the
foregoing, in the case of any registered public offering subsequent to the
Company's initial public offering, the number of Registrable Securities included
in such registration and underwriting shall not be reduced below 25% of the
securities included in such registration.
7.
1.9 Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will reimburse each such Holder, underwriter or
controlling person, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished for use in connection with such registration by
any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder for use in
connection with such registration; and each such Holder will pay any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.10(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Holder
(which consent shall not be unreasonably withheld); provided,
8.
that, in no event shall any indemnity under this subsection 1.10(b) exceed the
gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.10, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and Holders under this Section
1.10 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or
9.
regulation of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration or pursuant to a registration on
Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 Form S-3 Registration. In case the Company shall receive from
---------------------
any Holder or Holders holding Registrable Securities then outstanding a written
request or requests that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) use its best efforts to effect, as soon as practicable, such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within 15 days after receipt of such written notice from
the Company; provided, however, that the Company shall not be obligated to
effect any such registration, qualification or compliance, pursuant to this
section 1.12: (1) if Form S-3 is not available for such offering by the Holders;
(2) if the Holders, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if
10.
any) at an aggregate price to the public of less than $1,000,000; (3) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be detrimental to the Company and its shareholders for
such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than one hundred twenty (120) days after
receipt of the request of the Holder or Holders under this Section 1.12;
provided, however, that the Company shall not utilize this right more than twice
in any twelve month period; (4) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected two registrations on
Form S-3 for the Holders pursuant to this Section 1.12; or (5) in any particular
jurisdiction in which the Company would be required to qualify to do business or
to execute a general consent to service of process in effecting such
registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders. All expenses incurred in connection with the registrations
requested pursuant to Section 1.12, including (without limitation) all
registration, filing, qualification, printer's and accounting fees and the fees
and disbursements of counsel for the Holders, but excluding any underwriters'
discounts or commissions and taxes, shall be borne pro rata by each of the
selling Holders. Registrations effected pursuant to this Section 1.12 shall not
be counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
(d) The Company shall not be obligated to effect any registration
pursuant to this Section 1.12 if the Company delivers to the Holders requesting
registration under this Section 1.12 an opinion, in form and substance
acceptable to such Holders, of counsel satisfactory to such Holders, that the
Registrable Securities so requested to be registered may be sold or transferred
pursuant to Rule 144(k) under the Act.
1.13 Limitations on Subsequent Registration Rights. From and after
---------------------------------------------
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1.2 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of such holder's securities will not reduce the amount of the
Registrable Securities of the Holders which is included or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in subsection
1.2(a) or within one hundred twenty (120) days of the effective date of any
registration effected pursuant to Section 1.2.
1.14 "Market Stand-Off" Agreement. The Investor hereby agrees that,
----------------------------
during the period of duration specified by the Company and an underwriter of
Common Stock or other securities of the Company, following the effective date of
the first registration statement of the Company filed under the Act, it shall
not, to the extent requested by the Company and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including, without limitation,
11.
any short sale), grant any option to purchase or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any securities of the
Company held by it at any time during such period except Common Stock included
in such registration; provided, however, that:
(a) all executive officers and directors of the Company enter into
similar agreements; and
(b) such market stand-off time period shall not exceed 180 days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-14 or Form S-15 or similar forms which may be promulgated
in the future.
1.15 Termination of Registration Rights. No Holder shall be entitled
----------------------------------
to exercise any right provided for in this Section 1 after three (3) years
following the consummation of the sale of securities pursuant to a registration
statement filed by the Company under the Act in connection with the initial firm
commitment underwritten offering of its securities to the general public at a
price per share of at least $9.37 (such offering price being subject to
proportional adjustment to reflect subdivisions, combinations, stock dividends
and similar transactions affecting the number of outstanding shares of Common
Stock) for aggregate gross offering proceeds to the Company (calculated before
deduction of underwriters' discounts and commissions) of at least $10,000,000,
or, with respect to any individual Holder or its transferee, when all
Registrable Securities held by such Holder may be sold under Rule 144 within a
given 90-day period.
2. Right Of First Offer. Subject to the terms and conditions
--------------------
specified in this Section 2, the Company hereby grants to each Investor holding
at least 500,000 shares of Registrable Securities a right of first offer with
respect to future sales by the Company of its Shares (as hereinafter defined).
For purposes of this Section 2, Investors include any affiliates of the
Investors and any party to whom such Investor's rights under this Section 2 have
been duly assigned in accordance with Section 5 hereof. The Investors shall be
entitled to apportion the right of first offer hereby granted it among itself
and its affiliates in such proportions as it deems appropriate.
2.1 Company Requirements. Each time the Company sells or otherwise
transfers any shares of, or securities convertible into or exercisable for any
shares of, any class of its capital stock ("Shares"), the Company shall first
make an offering of such Shares to the Investors in accordance with the
following provisions:
(a) The Company shall deliver a notice by certified mail ("Notice")
to the Investors stating (i) its bona fide intention to offer such Shares, (ii)
the number of such Shares to
12.
be offered, (iii) the price and terms, if any, upon which it proposes to offer
such Shares and (iv) the identity of proposed purchasers of the Shares.
(b) Within 10 days after giving of the Offer Notice, each Investor
may elect to purchase or obtain, at the price and on the terms specified in the
Offer Notice, up to that portion of the number of such Shares which equals the
proportion that the number of shares of Common Stock issued and held (assuming
conversion of the Preferred Stock then held), by such Investor bears to the
total number of shares of Common Stock issued and held (assuming conversion of
the Preferred Stock then held), by all of the Investors. In the event an
Investor fails to purchase such Investor's pro rata amount under the terms of
this Section 2, the Company shall promptly, in writing, inform the other
Investors electing to purchase their respective pro rata amounts. During the 10
day period commencing after receipt of such information, such other Investors
shall be entitled to obtain that portion of the Shares not so subscribed for
subject to the limitations in the first sentence of this paragraph.
(c) If all Shares are not elected to be obtained as provided in
subsection 2(b) hereof, the Company may, during the sixty (60) day period
following the expiration of the period provided in subsection 2(b) hereof, offer
the remaining unsubscribed portion of such Shares to any person or persons at a
price not less than, and upon terms no more favorable to the offeree than those
specified in the Offer Notice. If the Company does not sell the Shares within
such period, the right provided hereunder shall be deemed to be revived and such
Shares shall not be offered unless first reoffered to the Investors in
accordance herewith.
(d) The right of first offer in this paragraph 2 shall not be
applicable (i) to or after consummation of a bona fide, firmly underwritten
public offering of shares of Common Stock, registered under the Act pursuant to
a registration statement; (ii) the issuance of securities pursuant to the
conversion or exercise of convertible or exercisable securities provided that
such securities were offered to the Investors under this Section 2.1 or were
outstanding, or issued, on the date of this Agreement; (iii) the issuance of
securities in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange of
stock or otherwise approved by the Board of Directors; (iv) the issuance of
securities in connection with an equipment financing, a joint venture, a
partnership agreement, bank financings or lease lines approved by the Board of
Directors; or (v) the issuance of stock, warrants or other securities or rights
to service providers or employees as equity compensation.
(e) From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Holders of a majority of the
outstanding Registrable Securities, enter into any agreement with any Holder or
prospective holder of any securities of the Company which would allow such
Holder or prospective Holder a right of first offer which is, in the good faith
judgment of the Board of Directors of the Company, on terms more favorable to
such Holder or prospective Holder than the right of first refusal granted in
this Section 2.
2.2 Termination. This right of first offer shall terminate (i)
-----------
immediately following the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
initial firm commitment underwritten offering of its securities to the general
public at a price per share of at least $4.20 (such offering price being subject
to proportional adjustment to reflect subdivisions, combinations, stock
dividends
13.
and similar transactions affecting the number of outstanding shares of Common
Stock) for aggregate gross offering proceeds to the Company (calculated before
deduction of underwriters' discounts and commissions) of at least $10,000,000,
or (ii) upon (a) the acquisition of all or substantially all the assets of the
Company or (b) an acquisition of the Company by another corporation or entity by
consolidation or merger in which the holders of the Company's outstanding voting
stock immediately prior to such transaction own, immediately after such
transaction, securities representing less than 50% or more of the voting power
of the corporation or other entity surviving such transaction.
3. Right of First Refusal.
----------------------
Each Investor hereby reaffirms that, pursuant to that certain Amended
and Restated Co-Sale Agreement dated the date hereof by and between the Company,
certain Founders (as defined therein) and certain Investors (as defined therein)
(the "Co-Sale Agreement"), they are concurrently herewith granting a "Right of
Refusal" (as that term is defined therein) to the Company and certain other
parties as set forth in the Co-Sale Agreement.
4. Information Rights.
------------------
4.1 Financial Information. The Company covenants and agrees that,
---------------------
commencing on the date of this Agreement (i) with respect to each Investor for
so long as it holds at least 500,000 shares of Registrable Securities (as
adjusted to reflect subdivisions, combinations, stock dividends, splits and
similar transactions), the Company will:
(a) Annual Reports. Furnish to such Investor, as soon as
--------------
practicable and in any event within 90 days after the end of each fiscal year of
the Company, an audited consolidated balance sheet as of the end of such fiscal
year and an audited consolidated statement of operations, an audited
consolidated statement of cash flows and an audited statement of stockholders'
equity of the Company for such year and detailed financial projections for the
next fiscal year, setting forth in each case in comparative form the figures
from the Company's previous fiscal year (if any), all prepared in accordance
with United States generally accepted accounting principles and practices,
consistently applied, and audited by an independent certified public accountant;
(b) Quarterly Reports. Furnish to such Investor as soon as
-----------------
practicable, and in any case within 30 days of the end of each fiscal quarter of
the Company (except the last quarter of the Company's fiscal year), quarterly
unaudited financial statements, including an unaudited balance sheet, an
unaudited statement of operations and an unaudited statement of cash flows, all
prepared in accordance with United States generally accepted accounting
principles, consistently applied; and
(c) Monthly Balance Sheets. Within 20 days after the end of each
----------------------
calendar month, furnish to such Investor a balance sheet and a statement of
operations as of the end of such month, prepared in accordance with United
States generally accepted accounting principles, consistently applied.
(d) Each of the financial statements to be delivered by
Section 4.1(a), (b) and (c) shall, in a separate line item, reflect the number
of cards sold but not used.
14.
4.2 Inspection Rights. For so long as the Investor holds at least
-----------------
500,000 shares of Registrable Securities (as adjusted to reflect subdivisions,
combinations, stock dividends, splits and similar transactions), the Company
shall permit such Investor, at such Investor's expense, to visit and inspect the
Company's properties, to examine its books of account and records and to discuss
the Company's affairs, finances and accounts with its officers, at all such
reasonable times as may be requested by such Investor, provided, however, that
-------- -------
the Company shall not be obligated under this Section 4.2 to provide information
which it deems in good faith to be a trade secret or similar confidential
information if the Investor does not first execute an appropriate nondisclosure
agreement.
4.3 Termination of Information Rights. The Company's obligations
---------------------------------
under Sections 4.1 through 4.2 above will terminate upon the earlier of: (i) the
consummation of the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection with the initial firm
commitment underwritten offering of its securities to the general public at a
price per share of at least $9.37 (such offering price being subject to
proportional adjustment to reflect subdivisions, combinations, stock dividends
and similar transactions affecting the number of outstanding shares of Common
Stock) for aggregate gross offering proceeds to the Company (calculated before
deduction of underwriters' discounts and commissions) of at least $10,000,000,
or (ii) upon (a) the acquisition of all or substantially all the assets of the
Company or (b) an acquisition of the Company by another corporation or entity by
consolidation or merger in which the holders of the Company's outstanding voting
stock immediately prior to such transaction own, immediately after such
transaction, securities representing less than 50% or more of the voting power
of the corporation or other entity surviving such transaction.
5. Assignment of Rights.
--------------------
5.1 Assignment. Notwithstanding anything herein to the contrary:
----------
(a) Information Rights. The rights of each Investor under Section 4
------------------
hereof may be assigned only to a party who acquires from such Investor (or such
Investor's permitted assigns) at least 500,000 shares of Registrable Securities.
(b) Registration Rights, Refusal Rights. The registration rights of
-----------------------------------
a Holder under Section 1 hereof, the rights of first offer under Section 2
hereof and the Rights of First Refusal under Section 3 hereof may be assigned
only to: (i) any partner or retired partner of any such Holder which is a
partnership; (ii) any family member or trust for the benefit of any Holder who
is an individual; (iii) with respect to the registration rights under Section 1,
to any transferee who acquires at least 500,000 shares of Registrable
Securities; and (iv) with respect to the rights of first offer under Section 2,
and the Rights of First Refusal under Section 3 hereof to any transferee who
acquires at least 500,000 shares of Registrable Securities; provided, however,
-------- -------
that no party may be assigned any of the foregoing rights unless the Company is
given written notice by the assigning prior to the time of such assignment
stating the name and address of the assignee and identifying the securities of
the Company as to which the rights in question are being assigned; and provided
--------
further, that any such assignee shall receive such assigned rights subject to
-------
all the terms and conditions of this Agreement, including without limitation the
provisions of this Section 5.
15.
6. Miscellaneous.
-------------
6.1 Successors and Assigns. Except as otherwise provided herein, the
----------------------
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
6.2 Governing Law. This Agreement shall be governed by and construed
-------------
under the internal laws of the State of California without giving effect to the
principles of conflicts of laws thereof.
6.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.4 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.5 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
6.6 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
6.7 Amendments and Waivers. Any term of this Agreement may be amended
----------------------
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of a majority of the
Registrable Securities then outstanding. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
6.8 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
16.
6.9 Aggregation of Stock. All shares of Registrable Securities held
--------------------
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
6.10 Entire Agreement; Superseding Effect. This agreement constitutes
------------------------------------
the entire agreement between and among the parties hereto pertaining to the
subject matter hereof and any other written or oral agreements between and among
the parties hereto pertaining thereto are expressly cancelled. This agreement
amends and restates the Original Investors' Rights Agreement in its entirety,
and such Original Investors' Rights Agreement shall be deemed terminated upon
the execution of this agreement by the Company and the Investors.
[Remainder of Page Intentionally Left Blank]
17.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
OCEN COMMUNICATIONS, INC.
By:___________________________________________
Name: ββββββ βββ
Its: President
Address:______________________________________
______________________________________________
INVESTORS:
BAPEF INVESTMENTS VI LIMITED
By: __________________________________________
Name:
Title:
Address:______________________________________
______________________________________________
βββββββ PHLEGER & ββββββββ LLP
By:___________________________________________
Name: ββββββ Mo
Its:
Address:______________________________________
______________________________________________
By:___________________________________________
Name: βββββ βββββββ
Address:______________________________________
______________________________________________
[Signature Page to Amended and Restated Investor's Rights Agreement]
By:____________________________________________
Name: ββββ Bow
Address:_______________________________________
_______________________________________________
ββββββββ COMMUNICATIONS CO.
By:____________________________________________
Name: βββββ ββββ
Its:
Address:_______________________________________
_______________________________________________
By:____________________________________________
Name: ββββββ βββ
Address:_______________________________________
_______________________________________________
By:____________________________________________
Name: ββββββ βββ
Address:_______________________________________
_______________________________________________
By:____________________________________________
Name: ββββββ Mo
Address:_______________________________________
_______________________________________________
[Signature Page to Amended and Restated Investor's Rights Agreement]
S.T.B. INTERNATIONAL, INC.
By:_________________________________________
Name: ββββββ βββ
Address:____________________________________
____________________________________________
By:_________________________________________
Name: βββ ββββ
Address:____________________________________
____________________________________________
By:_________________________________________
Name: Wu Tsai ββ βββ
Address:____________________________________
____________________________________________
ββββββββ INFORMATION TECHNOLOGY LIMITED
By: ________________________________________
Name:
Title:
Address:____________________________________
____________________________________________
EXCEL-FOUNDATION LIMITED
By: ________________________________________
Name:
Title:
Address:____________________________________
____________________________________________
[Signature Page to Amended and Restated Investor's Rights Agreement]
LOTUS LIBERATOR FUND
By: ______________________________________
Name:
Title:
Address:__________________________________
__________________________________________
By:_______________________________________
Name: ββββββ ββββββββββ
Address: ββββ ββββββ ββββββ
βββββββββββ, ββ βββββ
By:_______________________________________
Name: βββ β. βββββ
Address: ββββ ββββββ ββββ ββ. #ββ
βββββ ββββ, ββ βββββ
By:_______________________________________
Name: ββββ ββββββββββ
Address: ββββ ββββ ββββ
ββββ ββββ, ββ βββββ
By:_______________________________________
Name: βββββ β. βββ
Address: βββ βββββ ββββ
βββββ ββββ, ββ βββββ
[Signature Page to Amended and Restated Investor's Rights Agreement]
SCHEDULE A
----------
INVESTORS
Series D Preferred Stock Investor Name Consideration Shares Purchased
-------------------------------------- ------------- ----------------
Lotus Liberator Fund $1,099,995.00 146,666
Excel-Foundation Limited $1,899,997.50 253,333
ββββββββ Information Technology Limited $1,899,997.50 253,333
Baring Asia Investments IV B.V. $3,000,000.00 400,000
βββββββ Phleger & ββββββββ LLP $ 99,997.50 13,333
Series C Preferred Stock Investor Name Consideration Shares Purchased
-------------------------------------- ------------- ----------------
Lotus Liberator Fund $ 1,000,000 476,190
Excel-Foundation Limited $ 500,000 238,095
ββββββββ Information Technology Limited $ 500,000 238,095
ββββββ ββββββββββ $ 32,000 15,238
βββ β. βββββ $ 30,000 14,285
ββββ ββββββββββ $ 45,500 21,666
βββββ β. βββ $ 42,500 20,238
Series B Preferred Stock Investor Name Consideration Shares Purchased
-------------------------------------- ------------- ----------------
ββββββββ Information Technology Limited
a. First Closing $ 499,999.80 261,780
b. Second Closing $1,999,999.20 1,047,120
c. Third Closing $ 749,999.70 392,670
--------------- ------------------
Excel-Foundation Limited
a. First Closing $ 499,999.80 261,780
b. Second Closing $2,000,001.11 1,047,121
c. Third Closing $ 749,999.70 392,670
--------------- ------------------
$6,499,999.31 3,403,141
Series A Preferred Stock Investor Name Consideration Shares Purchased
-------------------------------------- ------------- ----------------
1. ββββββ βββ $ 40,581 32,466
2. ββββββ βββ $ 99,623 79,701
3. ββββ Bow $ 100,657 80,526
4. ββββββββ Communications Co. $ 40,666 32,532
5. Baring Asia Investments IV B.V. $ 1,500,000 2,512,480
6. βββββββ Phleger & ββββββββ LLP $ 20,000 15,999
7. βββββ βββββββ $ 100,000 80,004
8. βββ ββββ $ 50,000 39,999
9. ββββββ Mo $ 10,000 8,001
10. S.T.B. International, Inc. $ 18,500 14,799
11. Wu Tsai ββ βββ $ 20,000 15,999